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The Constitution in Wartime

Posted by michael on from the patch-constitution.txt-restrictions.txt dept.

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

2 of 256 comments (clear)

  1. Re:Well.. by pubudu · · Score: 5, Informative
    Actually, I was reading that, in the US, there is some law.. I forget the name. Something about declaring a state of national emergency. In such a state, the president has power to, well, basically, do anything, and ignore the constitution.

    The U.S. President has a variety of emergency powers, but none of them can in any way affect the rules set out in the Constitution. Congress, through the years, has expanded presidential power; these powers came with strings attached. In emergency, some of these strings come off, but the basic constitutional protections remain.

    This is not to say that Presidents have not violated the Constitution. Lincoln suspended the right of filing writs of habeas corpus (as did Davis). The loyalty oaths and attendant disqualifications from office may have constituted ex post facto laws and bills of attainder, but the Fourteenth Amendment, in making such disqualifications part of the Constutition, resolved that issue. And let's not forget about internment camps during World War II.

    Presidents may act unconstitutionally, but unlike Great Britain, unconstitutional acts, if they go unpunished, do not set a precedent for their constitutionality.

    --
    ~~~~~~

    under-paid karma whore

  2. Inaccurate at best. Please research first. by dangermouse · · Score: 5, Informative
    It turns out that every single one of those Executive Orders has been revoked and replaced. This is what I found from the NARA disposition tables:

    10990 -> 11612 -> 11807 -> REVOKED BY 12196
    10995 -> REVOKED BY 11556
    10997 -> REVOKED BY 11490
    10998 -> REVOKED BY 11490
    11000 -> REVOKED BY 11490
    11001 -> REVOKED BY 11490
    11002 -> REVOKED BY 11490
    11003 -> REVOKED BY 11490
    11004 -> REVOKED BY 11490
    11005 -> REVOKED BY 11490
    11310 -> REVOKED BY 11490

    The interesting bit is that 11490 was itself revoked by 12656. PEO 12656, "Assignment of emergency preparedness responsibilities", is still on the books.

    Of particular note is Sec. 102, which states in part:

    (b) This Order does not constitute authority to implement the plans prepared pursuant to this Order. Plans so developed may be executed only in the event that authority for such execution is authorized by law.

    As well it should... it's not within the Executive's powers to make law, only to regulate how its agencies carry out the execution of law defined by the Legislature.